Standard Roofing Co.1

STANDARD ROOFING CO. Standard Roofing Co. 'and United Union of Roofers, Waterproofers and Allied Workers Local Union No. 44, AFL-CIO. Case 8-CA-18337 July 29, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On December 30, 1986, Administrative Law Judge Russell M. King Jr. issued the attached deci- sion. The General Counsel filed exceptions and a supporting brief, and the Respondent filed a re- sponse to the General Counsel's brief as well as cross-exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and record in light of the exceptions, cross-exceptions, and briefs and has decided to affirm the judge's rul- ings, findings, and conclusions and to adopt the recommended Order as modified. The judge found that the Respondent violated Section 8(a)(5) and (1) of the Act by its unilateral and untimely withdrawal from a multiemployer bargaining group, the Greater Cleveland Roofing Contractors' Association (the Association), and by its subsequent refusal to sign the collective-bargain- ing agreement reached by the Association and the Union on August 19, 1985.2 The Respondent con- tends that its withdrawal, part of a general dissolu- tion of the Association by all its members, was jus- tified by "special circumstances," i.e., by the Union's attempts to fragment the Association and by the Union's course of bad-faith bargaining during negotiations. We agree with the judge, for the reasons set forth below, that the Union did not attempt to fragment the Association and that it did not engage in bad-faith bargaining during its nego- tiations with the Association. 1. As the judge noted, the parties' collective-bar- gaining agreement provided for termination in writing by either party on or before December 31, 1984. On December 26, 1984, Union Business Agent Michael Branca sent a notice of termination and request for negotiations for a new agreement to each employer member of the Association and ' As noted by the judge , the complaint was amended at the hearing to delete all Respondent Employers except Warren Roofing and Insulating Co and Standard Roofing Co On July 28, 1987 , the Board granted the General Counsel's motion to sever from the complaint any allegations pertaining to Warren Roofing and Insulating Co and to remand those complaint allegations to the Regional Director for settlement Thus, the sole remaining Respondent is Standard Roofing Co The case caption has been amended accordingly 2 Unless otherwise noted, all subsequent dates will refer to 1985 193 to employers with which the Union had a collec- tive-bargaining relationship but which were not members of the Association. Branca did not send a letter to the Association. The Respondent urges that by this letter the Union was seeking individual negotiations with members of the Association. The evidence, however, does not support this conten- tion. Branca testified that the notices were sent to individual employers rather than to the Association itself because several timely withdrawals from the Association had already occurred during Decem- ber 1984, that he expected more timely withdraw- als to occur, that the Union was not certain which employers were in or out of the bargaining group, and that the Union wished to make certain that all employers received the notice of termination. Branca further testified without contradiction that no individual negotiations with any Association members took place before March 5, 1985, when the Association itself commenced negotiations with the Union. The Respondent presented no documen- tary evidence or testimony to refute Branca's testi- mony. The Respondent makes a similar argument re- garding the Union's March 25, 1985 letter request- ing the signing of an interim agreement, sent both to Association members and to nonmember em- ployers. The judge credited Branca's testimony that this letter and the accompanying interim agreement, which extended the terms of the old agreement until a new agreement could be reached, were sent to Association members in error, and the Respondent has presented no testimonial or docu- mentary evidence to refute Branca's testimony. We also note, as did the judge, that no Association member signed the interim agreement and that ne- gotiations between the Association and the Union continued after the letter was sent. In our view, based on the evidence uncontradicted in the record and credited by the judge, neither the December 26, 1984 letter nor the March 25 letter, or the two letters taken together, indicate that the Union sought either to establish individual negotiations with Association employers in derogation of the Association's authority or to undermine the author- ity of the Association. 2. As noted above, the Respondent excepts to the judge's failure to conclude that the Union en- gaged in bad-faith bargaining that justified its with- drawal from the Association. In so doing, the Re- spondent attacks virtually every aspect of the Union's conduct during bargaining and contends that the Union engaged in bad-faith bargaining de- signed to disrupt the negotiations. We, however, find no merit in the Respondent's exception and we adopt the judge's finding that the Union did not 290 NLRB No. 27 194 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD bargain in bad faith. During the course of the ne- gotiations for a new contract, the Association and the Union met about nine times between March 5 and the June 19 dissolution of the Association. Briefly, as outlined as far as possible by the Re- spondent's own exhibits concerning the meetings, the negotiating sessions progressed as follows. The parties met first on March 5. At this session the Union presented no proposals but agreed to meet with its membership and to present proposals to the Association after the membership meeting.3 The Association proposed numerous changes to the old agreement or past practice, including the right to employ helpers, or "pre-apprentices," in place of journeymen roofers, without restriction. The union representatives told the Association that the union membership would meet March 11 and that its pro- posals would be forthcoming after the meeting. The next session was on April 1. At this session the Union presented 16 proposals, none of which were ultimately included in the negotiated con- tract. The parties also agreed to a "dangerous chemicals" provision, eliminated the breaks provi- sion, and discussed the use of helpers in place of journeymen to reduce labor costs. Concerning the latter, according to the testimony of Lally, the As- sociation's spokesman in negotiations, the Union orally raised the possibility of a "targeted jobs pro- posal," whereby employers would seek the Union's permission to substitute helpers for journeymen on a job-by-job basis. The Union expressed flexibility on the issue of a helper category, but stated that it would not agree to a proposal that lacked safe- guards and that it would submit a proposal at the next session. At the next session, held on April 17, the parties discussed a proposed union clause on work preser- vation and the use of helpers. The Union proposed a "targeted jobs" system, which the employers stated would not work. The next meeting was on April 22, at which the parties discussed, among other things, wage data distributed by the Associa- tion, the helper category and what terms were ac- ceptable to the Union, the targeted jobs proposal, and a possible wage rollback. The Union stated that it would try to formulate a helper proposal and present it in writing at the next meeting. Ac- cording to Lally's testimony, the Association re- duced its original proposal on the maximum ratio of helpers to journeymen from 100 percent to not more than 75 percent. The parties met on April 27, but no minutes of this meeting were kept by the Association. The Respondent's witness testified that at that meeting the Association lowered its offer on the ratio of helpers to journeymen on each job from not more than 50 percent to not more than 40 percent to not more than 33-1/3 percent. The Union made no counterproposals. On April 30, the parties met again . The Union presented a "pre-apprentices clause," whereby preapprentices would be paid 40 percent of the journeyman rate and would be used to complete crews when all journeymen were working. The Union also proposed a 3-year contract with a wage freeze the first year and $1 raises the second and third years. The Association presented a final offer of employment at the journeyman rate under the old contract; the use of preapprentices to constitute up to one-third of the work force; the payment by the employer of certain benefits for preapprentices; contract duration and a wage freeze of 2 years; overtime of time-and-one-half except Sundays and holidays; and $10 reporting pay. The Association's spokesman told the union representatives that the Union's proposals were unacceptable because they were inconsistent with reducing labor costs and that introducing their counterproposal "at this late hour" was inconsistent with the party's ground rules. The Union's spokesmen told the Association that to ask their membership to agree to the helper proposal would be to ask them to vote themselves out of a job and that a change in the provision (which the Association rejected) might make the proposal more palatable.4 Union Spokesman Branca asked if the Association would consider Federal mediation, but denied that this suggestion meant that he viewed the negotiations as at impasse and asserted that the Union was willing to work under the old contract on a day-to-day basis, but that the Union could not accept the Association's final offer." The parties met next on May 10. The Union pre- sented written proposals that new wage rates be ef- fective May 1 and be frozen for the duration of the contract (2 years); $13 reporting pay; and the use of probationary apprentices at 40 percent as long as all journeymen were working. The Association re- jected the last proposal. The Union agreed to take the Association's last proposal back to its members, but indicated again that the preapprentice issue would probably cause it to be rejected , and again asked for Federal mediation. On June 19 the parties met again. According to Lally's testimony, the Union, at the request of the 4 The union membership voted to reject the Association's final offer on May 5 or 6 3 Union Business Agent Branca testified that the Union's failure to ' The Union and the Association apparently did meet with the Federal present proposals at this meeting was caused by his illness and hospital mediator on April 23, but the record does not reflect what transpired at stay the meeting STANDARD ROOFING CO Association spokesman, distributed a "letter of un- derstanding," apparently under discussion in the Union's negotiations with nonassociation employ- ers. The letter contained a provision authorizing the use of probationary employees "in quoting for roofing work which is likely to be lost to nonunion contractors." The following language had been stricken out by hand: "The ratio [of journeymen to probationary apprentices] will not be less than 1 Journeyman to I Probationary Apprentice per Project unless a higher ratio of Journeymen to Pro- bationary Apprentices is requested by the Contrac- tor." The Association suggested that this language be restored and that language relating to the Union's discretion in authorizing the use of proba- tionary apprentices be deleted. The union repre- sentatives then told the Association that they needed to discuss the letter of understanding. The Association members agreed to disband the group on June 19 and the Union was notified formally by letter on June 24 that the Association had disband- ed and that the contractors were seeking negotia- tions on an individual basis. Under Section 8(d) of the Act, an employer and a union must "meet at reasonable times and confer in good faith with respect to wages, hours, and terms and conditions of employment . . . but such obligation does not compel either party to agree to a proposal or require the making of a concession." NLRB v. Reed & Prince Mfg. Co, 305 F.2d 131, 134 (1st Cir. 1953), cert. denied 346 U.S. 887 (1953). In the course of bargaining "[a] party is entitled to stand firm on a position if he reasonably believes that it is fair and proper or that he has sufficient bargaining strength to force the other party to agree." Atlanta Hilton & Tower, 271 NLRB 1600, 1603 (1984) (citation omitted). In the case at hand, it is clear from both the min- utes of the bargaining sessions and the testimony of witnesses at the hearing that the Respondent sought to reduce its labor costs through a curtail- ment of some economic benefits contained in the expired contract and through discretion in its use of helpers who were to work for a wage rate sig- nificantly lower than that of journeymen. It is also clear that the Union sought to augment the eco- nomic position of the employees and to forestall, limit, or place controls on the use of helpers by the employers. The Union's failure to accede to the Association's general position that it wanted to cut labor costs or to its position that its member em- ployers should have discretion in the use of helpers is not, of itself, an indication of bad-faith bargain- ing. In assessing the lawfulness of a party's conduct in bargaining, the Board's inquiry is whether, based on the context of the party's total conduct, it was 195 seeking to frustrate agreement to a contract or law- fully engaging in hard bargaining to negotiate a contract that it considers desirable. Ibid. We note that the Union met with the Respondent regularly, exchanged proposals albeit with some delays, modi- fied or dropped some demands, and agreed to some of the Respondent's proposals. We do not find, under all the circumstances of this case, that the Union's failure to present proposals at the parties' first meeting, some of its initial proposals, its refus- al to accede to the Association's proposals concern- ing the use of helpers, or its presentation of propos- als intended to augment the economic position of its members are indicia of bad faith. Therefore, we find, based on the Union's total conduct in negotia- tions, that the evidence does not support a finding that the Union engaged in bad-faith bargaining.6 We, accordingly, further find that the Respondent's contention that the Union's conduct justified the Respondent's untimely withdrawal from the Asso- ciation is without merit and we conclude that the Respondent's conduct violated Section 8(a)(5).7 3. In her brief to the judge, the General Counsel moved to amend the complaint to include factual averments regarding the reformation of the Asso- ciation in August and the Association's execution of a collective-bargaining agreement with the Union, and to allege further violations of Section 8(a)(5) arising out of the Respondent's refusal to acknowledge that it was bound by the signed agreement and its failure to implement its terms. The judge denied the General Counsel's motion to amend, but, despite his denial of the motion, found that the Respondent had violated Section 8(a)(5) by "refusing to become a signatory to the collective- bargaining agreement "reached by the Association and the Union on 19 August 1985," and ordered the Respondent to "[f]orthwith sign and implement the above described agreement and give it retroac- tive effect from 1 May 1985." The General Coun- sel has excepted to the -judge's denial of her motion. The Respondent opposed the General Counsel's motion to amend and now argues that the remedy imposed by the judge is inappropriate in that it depends on the grant of the General B We note that the judge stated that the Union was "derelict on occa- sions in presenting proposals or counterproposals" and that "at various times" the Union "took an almost cavalier attitude towards bargaining " Notwithstanding these characterizations, however, the judge ultimately concluded that the Union had not bargained in bad faith Our review of the course of bargaining here reveals that the judge's ultimate conclusion is fully supported by the record ' In view of our conclusion that the Union did not, in fact, engage in bad-faith bargaining, we find it unnecessary to pass on the issue of wheth- er a union's bad-faith bargaining with a multiemployer bargaining associa- tion would constitute "special circumstances" justifying untimely and un- consented-to withdrawal from multiemployer bargaining Cf Charles D Bonanno Linen Service, 243 NLRB 1093 (1979), affd 454 U S 404 (1982) 196 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Counsel's motion, which it contends was properly denied, and in that the newly alleged violation was not fully litigated at the hearing. We agree with the judge's denial of the General Counsel's motion to amend, inter alia, as unneces- sary to the remedy and, accordingly, we do not adopt the judge's finding that the Respondent vio- lated Section 8(a)(5) by refusing to sign and imple- ment the agreement reached by the Association and the Union on August 19. We, however, further find no merit in the Respondent's contentions that the remedy ordered by the judge is inappropriate and we adopt the judge's recommended Order with the modifications discussed below. Thus, under the circumstances of this case, the remedy of requiring the Respondent to sign and implement the agreement is necessary to restore the status quo ante. We disagree with the Respondent that this remedy depends on a finding that the Respondent separately violated the Act by failing to sign and implement the collective-bargaining agreement reached by the Union and the Association. The Re- spondent withdrew from its multiemployer bargain- ing group in violation of Section 8(a)(5) of the Act. By so withdrawing, it did not cease to be bound by the actions of that group. The judge found that after the dissolution of the Association on June 19 all members except Warren Roofing and Insulating Co. and the Respondent reformed the Association, and that, on August 19, the Association entered into an agreement with the Union on behalf of its members. The Respondent therefore is bound by the terms of the collective-bargaining agreement duly executed by the Association on behalf of its members. To remedy the Respondent's unfair labor practice by ordering it to sign and implement that agreement does nothing more than restore all par- ties, and the employees affected by the Respond- ent's unlawful withdrawal as well, to the positions they would have been in absent the Respondent's unfair labor practice. Further, we note that the issue of the appropriate remedy was raised at the hearing and that the judge put the Respondent on notice that the nature of the remedy would be at issue in the case. In light of the foregoing, we shall modify the judge's recommended Order by delet- ing paragraph 1(c).8 a In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after January 1, 1987, shall be computed at the "short -term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 US C § 6621 Interest on amounts accrued prior to January 1, 1987 (the effective date of the 1986 amendment to 26 U S C § 6621), shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) The General Counsel has requested the inclusion of a visitatorial clause ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Standard Roofing Co., Cleveland, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Delete paragraph 1(c). 2. Substitute the following for paragraph 2(a). "(a) Forthwith sign and implement the collec- tive-bargaining agreement reached by the Union and the Association representing its employer members on August 19, 1985, and give it retroac- tive effect from May 1, 1985." 3. Substitute the attached notice for that of the administrative law judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with United Union of Roofers, Waterproofers and Allied Work- ers Local Union No. 44, AFL-CIO by participat- ing in the unilateral and untimely disbandment of our multiemployer bargaining group. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL forthwith sign and implement the agreement of August 19, 1985, between the Union and the employer-members of the Greater Cleve- land Roofing Contractors' Association, Inc. and give it retroactive effect from May 1, 1985. WE WILL make whole our employees in the ap- propriate bargaining unit for any loss of pay or other employment benefits they may have suffered by reason of our refusal to sign and implement the collective-bargaining agreement, plus interest. STANDARD ROOFING CO. Steven D. Wilson, Esq., for the General Counsel. Allen G. Ross, Esq. (Wickens, Herzer & Panza Co., L.P A), of Cleveland, Ohio, for the Respondent Em- ployers. I in the Order Under the circumstances of this case we find it unnecessary i Attorney Allen G Ross was counsel for Respondents, Standard to include such an Order See Cherokee Marine Terminal, 287 NLRB Roofing Co and Warren Roofing and Insulating Co The motion, and its 1080 (1988) ramifications, will be discussed later herein STANDARD ROOFING CO Lawrence M. Oberdank, Esq. and Wrey Bradlkey, Esq., of Cleveland, Ohio, for the Charging Union DECISION STATEMENT OF THE CASE RUSSELL M. KING, JR., Administrative Law Judge. This case was heard by me in Cleveland, Ohio, on 19, 20, and 21 May 1986. The original charge was filed by the United Union of Roofers, Waterproofers and Allied Workers Local Union No. 44, AFL-CIO (the Union) on 18 June 1985, and an amended charge was filed by the Union on 27 August 1985.2 Based on the charge, as amended , a complaint was issued on 29 August by the Regional Director for Region 8 of the National Labor Relations Board (the Board) on behalf of the Board's General Counsel3 The original complaint alleged that the Greater Cleveland Roofing Contractors' Association, Inc. (the Association), together with its employer-mem- bers, violated Section 8(a)(1) and (5) of the National Labor Relations Act (the Act) on or about,24 June by disbanding the Association after negotiations for a new collective-bargaining agreement (contract) had com- menced.4 At the commencement of the hearing in this case, the General Counsel moved to delete or drop from the case the Respondent Association and all Respondent Employers except for Standard Roofing Co. (Standard), and Warren Roofing and Insulating Co. (Warren) The motion was unopposed and was granted. The complaint, as it then and now stands, in essence charges Standard and Warren with an untimely withdrawal from the mul- tiemployer group in violation of Section 8(a)(1) and (5) of the Act Respondents Standard and Warren defend on the grounds that certain acts or actions by the Union rendered the withdrawal from the multiemployer group (and negotiations) timely and proper. On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel, counsel for the Company, and counsel for the Union, I make the follow- ing 2 All dates hereafter are in 1985 unless otherwise stated 3 The term "General Counsel ," when used herein, will normally refer to the attorney in the case acting on behalf of the General Counsel of the Board, through the Regional Director * The pertinent parts of the Act (29 U S C § 151 et seq ) provide as follows Sec 8 (a) It shall be an unfair labor practice for an employer- (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 (5) to refuse to bargain collectively with teh representatives of his employees Sec 7 Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection FINDINGS OF FACT5 I. JURISDICTION AND THE LABOR ORGANIZATION 197 The pleadings, admission, and evidence in the case es- tablish the following jurisdictional facts Respondents Standard and Warren are separate business entities, which maintain principal offices and places of business in the Cleveland, Ohio area. Both Standard and Warren are engaged in the installation of roofing systems in the Cleveland, Ohio area, and, in the course and conduct of their business operations during a representative period, each individually purchase and receive at their facilities in the Cleveland, Ohio area products, goods, and materi- als valued in excess of $50,000 directly from points out- side of the State of Ohio Thus, I find, as alleged and ad- mitted, that Standard and Warren are now, and have been at all times material, employers engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. Also as alleged and admitted, I find that the Union is now, and has been at all times material, a labor organiza- tion within the meaning of Section 2(5) of the Act 11. THE UNFAIR LABOR PRACTICES A. Background The Association (the multiemployer bargaining group or unit) and the Union had maintained a collective-bar- gaining relationship for a period in excess of 30 years. The most recent contract expired on 30 April. Negotia- tions on a new contract commenced in early March, but after some 8 to 10 negotiating sessions, the last of which was on 19 June, the parties were unable to agree on a new contract and the multiemployer group, unilaterally, came to the decision to disband and seek individual ne- gotiations with the Union. The Union opposed the ac- tions of the multiemployer group and requested a re- sumption of negotiations on a group basis through the Association On or about 13 August, all former members of the group reformed except Standard and Warren, and on or about 19 August, the Association, on behalf of its member employers, reached agreement on a new con- tract. Thereafter, Standard and Warren expressed a con- tinued desire to bargain individually, but the Union re- fused and insisted that Standard and Warren accept the contract that had been reached with the Association on or about 19 August The Union thereafter filed the inti- tial charge in this case, which was followed by the issu- ance of the complaint on 29 August. Subsequently, and before the hearing in this case was opened on 19 May 1986, the Association, together with its member-employ- 5 The facts found herein are based on the record as a whole and on my observation of the witnesses The credibility resolutions herein have been derived from a review of the entire testimonial record and exhibits with due regard for the logic of probability, the demeanor of the witnesses, and the teaching of NLRB v Walton Mfg Co, 369 U S 404, 408 (1962) As to those testifying in contradiction of the findings herein, their testi- mony has been discredited either as having been in conflict with the testi- mony of credible witnesses or because it was in and of itself incredible and unworthy of belief All testimony and evidence, regardless of wheth- er mentioned or alluded to herein, has been reviewed and weighed in light of the entire record 198 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ers (except for Standard and Warren), and the Union reached a settlement of the issues alleged in the original complaint, with the approval of the Regional Director. Thus, at the commencement of the hearing the Associa- tion, and all members-employers except for Standard and Warren, were dismissed from the case The contract between the Association and the Union expired on 30 April. The duration clause of the contract (art. II) provided for automatic renewal of the contract from year to year unless either party terminated the con- tract by wntten notice on or before 31 December 1984, or any subsequent 31 December. The contract also pro- vided that in the event the parties were unable to reach an agreement pnor to the expiration date, by mutual con- sent the parties could agree to continue the terms of the contract until a new contract was negotiated. The con- tract was an areawide contract, and the Union had a contractual relationship with many roofing contractors or employers in the Cleveland area, not all of which were members of the Association Pursuant to the dura- tion or termination clause of the contract (art. II), on 26 December 1984 Union Business Manager Branca wrote to all employers (both Association and non-Association contractors) as follows: Gentlemen: Local 44, United Union of Roofers' Water- proofers' and Allied Workers does hereby give notice pursuant to Article II of the collective-bar- gaining agreement of its intent to terminate the same on April 30, 1985. Local 44 wishes to begin collective bargaining for a new agreement as soon as possible and it is ready to meet with your representatives at their ear- liest convenience. Kindly contact the undersigned to arrange a time and place for the meeting. The first negotiating session between the Association and the Union was on 5 March On 25 March, Branca wrote to all contractors or employers with whom the Union had entered into a contract (both Association and non- Association employers) as follows: Dear Sir: Enclosed is an Interim Agreement which is self- explanatory and will enable your company to con- tinue working in the event a new collective bargain- ing agreement is not consummated by April 30, 1985. I would appreciate your executing the same and returning it to me at your earliest convenience. Do not hesitate to contact me if you have any ques- tions. The interim agreement, which was attached, was a short document that in effect continued the expiring con- tract "until a new collective bargaining agreement is consummated." This interim agreement further provided that "all terms and conditions of any collective bargain- ing agreement that is consummated shall be made retro- active to Apnl 30, 1985." Thereafter, bargaining contin- ued between the Association and the Union, and it is clear from the record that the Union desired the new contract to be an areawide contract, applying additional- ly to non-Association employers. Branca testified that the mailing of the interim agreement to members of the As- sociation on 25 March was an error." However, it is clear from the record that no member of the Association entered into the interim agreement . Aside from bargain- ing with the Association, the Union continued bargaining with other nonmembers, and on or about 1 August en- tered into what the Union hoped would be an areawide agreement with two independent employers, which agreement became known as the Weathermark agree- ment These two employers engaged in a considerable amount of roofing work in the Cleveland area. On 13 August, the former members of the group reformed the Association, with the exception of Standard and Warren, and on or about 19 August, the Association entered into the Weathermark agreement on behalf of its member-em- ployers. B. The Fragmentation Issue The Respondents argue in this case that the Union in- tended at the very outset to fragment the multiemployer group and thus caused to exist unusual circumstances which justified the unilateral withdrawal from the group (the Association). I disagree. Once negotiations for a new contract have commenced, the Board will permit withdrawal from the multiemployer group only if there is "mutual consent" or "unusual circumstances." Retail Associates, 120 NLRB 388 (1958). The Board has limited application of the term "unusual circumstances" to those cases in which the withdrawing employer has been faced with dire economic circumstances, or where a bargaining unit has been substantially fragmented. Polar Air Sheet Metal Co., 264 NLRB 1331 (1982); Bonanno Linen Service v. NLRB, 454 U.S. 404 at 411 fn. 6 (1982). The Board has also held, with approval, that an impasse reached in multiemployer bargaining did not constitute an unusual circumstance that would have permitted an employer to withdraw from the group. Hi-way Billboards, 206 NLRB 22 (1973), Bonanno Linen Service v. NLRB, supra. In San- gamo Construction Co., 188 NLRB 159, 160 (1971), the Board approved a union 's negotiation of interim agree- ments with individual members of a multiemployer group, stating as follows: We . . conclude that the Respondents did not violate the Act by entenng into or performing the terms of the interim agreement. The record does not convince us that such conduct has a significant- ly adverse impact upon the integrity of the multiem- ployer bargaining unit. Nor does the evidence show that the agreement was in derogation of the Asso- ciation's bargaining authority or outside the cover- age of the ultimate Association's contract. The facts show, rather, that bargaining did continue during the operative penod and indeed resulted in an agreement which included the [employer] in its cov- erage. 8 One such letter was admitted into evidence This letter was to Warren Roofing and plainly appears to have been addressed by machine STANDARD ROOFING CO I See also Charles D. Bonanno Linen Service, 243 NLRB 1093 (1979); Polar Air Sheet Metal Co., supra. I find that the Union's letter of 26 December 1984 was sent to As- sociation and non-Association members in the normal course of events prior to the onset of multiemployer bar- gaining, and pursuant to the contract's reopener man- dates on or before 30 December 1984. There is no evi- dence whatsoever in this case that the Union wished to terminate its relationship with the Association in this regard, and thus I find that the 26 December 1984 letter in no way constituted any proof or evidence that the Union desired to fragment or dissolve its bargaining rela- tionship with the Association. Likewise, I find that the Union's 25 March letter regarding the interim agreement was not tantamount to a rejection by the Union of the existence of the multiemployer group (the Association), and I note in this connection that bargaining between the Union and the Association continued and no Association members signed , or considered execution of, such an in- terim agreement . In this case, the Association and all em- ployer-members were dismissed from the case with the exception of Standard and Warren. In my opinion, it cannot be concluded from this that Standard and Warren were in any way forgiven for the original and total dis- bandment of the multiemployer group, nor did this fact in any manner act as an approval for their continued withdrawal after the Association was reformed and the contract was signed. Had all original Respondents been maintained in this case, it would have been my conclu- sion that they all had violated the Act by their untimely disbandment and withdrawal from the multiemployer bargaining unit and process. C. The Union's Bargaining Tactics The Respondents also argue in this case that the Union bargained in bad faith, resulting in the dissolution of the Association on 19 June. There were some 8 to 10 bar- gaining sessions commencing 5 March and ending on 19 June. During these sessions, notes or minutes were kept by either one party or the other, and most of those notes or minutes were admitted into evidence. The main thrust of the Association during bargaining was to hold down labor costs by increasing the utilization of helpers. The Association claimed that through the use of such helpers, the member-employers could better compete in the mar- ketplace with nonunion employers. At one point in the negotiations, the Union mentioned a targeted jobs pro- posal, a plan in which the Employer would seek and obtain permission from the Union to use helpers on a particular job the Employer was preparing to bid on. The Association maintained that such a proposal had been shown not to work.? There were three categories of employees as follows: journeymen, apprentices, and probationary apprentices. Probationary apprentices were also defined as helpers. One goal of the Union was to in- crease the number of journeymen, the highest pay cate- gory, through the training and qualification of appren- tices. Thus, the two sides were at odds in the use of the lowest pay category of employees. Throughout the ne- The contract eventually entered into by the Association after it was reformed did involve a targeted jobs provision 199 gotiations, and as alleged by the Respondent, the Union was in fact derelict on occasions in presenting proposals or counterproposals, and at various points took an almost cavalier attitude towards bargaining. However, proposals were ultimately made, exchanged, and discussed. Robert Lowry was chairman of the Association's bargaining committee, and testified that the Association was dis- banded because progress in the negotiations "was virtual- ly halted." The Respondents, in their brief, characterized some of the Union's behavior during negotiations as "sand bagging." A review of the entire record, including the testimony and minutes of the various negotiating ses- sions, does in fact reveal that the Union was loosely pre- pared for some of the negotiating sessions, and that the Union on occasion took positions that could be charac- terized as somewhat extreme, but I do not find that the Union's actions were calculated to sabotage the negotia- tions. At best, the Union was guilty of dereliction on oc- casion, and at other times guilty at best of hard bargain- ing. The subject was of great concern to the Respond- ents, and the majority of the testimonial evidence in the case is centered on the bargaining aspects of the case, and was presented by the Respondents.8 The General Counsel showed little interest in this area, choosing in the main to rest his case on the wrongful and untimely disbandment of the Association itself. Neither party actu- ally argues that an impasse occurred in the bargaining. Based on the record, I cannot find that the Union was guilty of bad-faith bargaining tantamount to a violation of the Act, as alleged by the Respondents. In any event, such a finding would not have constituted "unusual cir- cumstances" or sufficient grounds for the disbandment of the Association or withdrawal of any employer from the Association. Hi-Way Billboards, supra; Bonanno Linen Service v. NLRB, supra. I find in this case that the initial disbandment of the Association by its member-employers was violative of the Act, and because I have before me only two of those Respondent Employers, I so find and conclude that the Respondents, Standard and Warren, violated Section 8(a)(1) and (5) of the Act by their untimely withdrawal from the multiemployer group or unit when it disbanded. On the foregoing findings of fact and initial conclu- sions, and on the entire record, I make the following CONCLUSIONS OF LAW 1. The Respondents, Standard Roofing Co. and Warren Roofing and Insulating Co., are employers en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 8 As noted earlier, the contract finally entered into by the Association and the Union was the Weathermark agreement , which had earlier been executed by the Union and two somewhat substantial non-Association employers in the area Throughout the Union made clear its intent to obtain an areawide agreement, as it had in the past The Respondents maintain that they were more or less forced into accepting the weather- mark agreement There may be some validity in this contention Howev- er, the Association knew of the Union's areawide aspirations, and also knew that the Union was bargaining with other non-Association employ- ers The Weathermark agreement' was in the nature of a breakthrough for the Union, which, I conclude, the Association members knowingly chanced when they decided to disband the Association 200 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3 The Union is, and has been at all material times, an exclusive bargaining representative of the employees of the Association's members, including the Respondents, in the following appropriate multiemployer unit All working foremen, block floormen , journeymen and apprentices, excluding all office clerical em- ployees and guards and supervisors as defined in the Act.9 4. By participating in the disbandment of the Associa- tion on or about 19 June 1985, and thereafter refusing to become a signatory to the collective-bargaining agree- ment reached by the Association and the Union on 19 August 1985, the Respondents have engaged in, and con- tinue to engage in, unfair labor practices in violation of Section 8(a)(5) and (1) of the Act. 5. The unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondents have engaged in certain unfair labor practices, I shall recommend that they cease and desist therefrom and take certain affirma- tive action that I find necessary to effectuate the policies of the Act. In this connection, I shall recommend that the Respondents be ordered to immediately sign and im- plement the collective-bargaining agreement reached by the Union and the Association on or about 19 August 1985, and apply the agreement retroactively through 1 May 1985, and further make their employees whole for any loss of earnings or other benefits suffered since then as a result of their failure to apply the agreement. Inter- est on wages due, if any, shall be paid in accordance with the provisions of Florida Steel Corp, 231 NLRB 651 (1977),10 and shall be calculated from 1 May 1985, the effective date of the new contract entered into by the Association and the Union I I 9 Respondents, in their answer to the complaint, denied the appropri- ateness of the unit as alleged in the complaint However, the issue was not raised during the hearing or in the Respondents' posthearing brief Also, as the General Counsel points out in his brief, the same unit was agreed on in the expired contract, and was also not the subject of any negotiations I also note that it was again approved in the new contract 10 See generally Isis Plumbing Co, 138 NLRB 716 (1962) ii The subject of an appropriate remedy was raised by me at the hear- ing The General Counsel, in order to ensure an appropriate remedy, made a motion in his postheanng brief to amend the complaint to addi- tionally allege the reformation of the Association, the new agreement be- tween the Union and the Association, and the wrongful refusal of Stand- ard and Warren to rejoin the Association and be bound by the new agreement The Respondents (Standard and Warren) in turn, and in addi- tion to their posthearing brief, filed a motion for leave to file an opposi- tion to the General Counsel's motion and a brief in opposition to the motion Respondents' motion is granted and the brief in opposition is ac- cepted and has been considered However, 1 now do not consider the General Counsel's proposed amendments necessary for an appropriate remedy in this case, and for this and other reasons, the motion to amend the complaint is denied On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed12 ORDER The Respondents, Standard Roofing Co. and Warren Roofing and Insulating Co., Cleveland, Ohio, their offi- cers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain collectively with United Union of Roofers, Waterproofers and Allied Workers Local Union No 44, AFL-CIO as the exclusive representative of their employees in the appropriate unit described and found herein. (b) Withdrawing from the mulitemployer bargaining, except on adequate written notice given prior to the date set by the contract for modification, or to the agreed-on date to begin the multiemployer negotiations, except at such other time as it may lawfully withdraw. (c) Refusing to sign and to implement the agreement reached by the Union and the Association representing its employer-members on 19 August 1985. (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Forthwith sign and implement the above-described agreement and give it retroactive effect from 1 May 1985 (b) Make whole their employees in the above-de- scribed bargaining unit for any loss of pay or other em- ployment benefits they may have suffered by reason of their refusal to sign and implement the aforesaid agree- ment, in the manner set forth in the remedy section of this decision (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at their places of business in or around Cleve- land, Ohio, copies of the attached notice marked "Ap- pendix A" or "Appendix B" 13 Copies of the notice, on forms provided by the Regional Director for Region 8, after being signed by the Respondents' authorized repre- sentatives, shall be posted by the Respondents immedi- ately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reasonable steps shall be taken by the Respondents to ensure that 12 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be waived for all purposes 13 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " STANDARD ROOFING CO 201 the notices are not altered, defaced, or covered by any (e) Notify the Regional Director in writing within 20 other material . days from the date of this Order what steps Respondents have taken to comply.